SZOWE v Minister for Immigration & Anor [2011] FMCA 279 (31 March 2011)

Federal Magistrates Court of Australia

[Index] [Search] [Download] [Help]

---

SZOWE v Minister for Immigration & Anor [2011] FMCA 279 (31 March 2011)

Last Updated: 27 April 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SZOWE v MINISTER FOR IMMIGRATION & ANOR

[2011] FMCA 279

MIGRATION – Review of RRT decision – persecution – where Tribunal not satisfied that applicant was persecuted on religious grounds – whether Tribunal’s decision constituted jurisdictional error by reason of illogicality or irrationality – whether Tribunal afforded sufficient time for provision of information – whether the Court can conduct merits review of Tribunal decision.

Migration Act 1958 (Cth), s.91R(3)

Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 Minister for Immigration v Eshetu [1999] HCA 21

Applicant:

SZOWE

First Respondent:

MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent:

REFUGEE REVIEW TRIBUNAL

File Number:

SYG 2729 of 2010

Judgment of:

Raphael FM

Hearing date:

31 March 2011

Date of Last Submission

31 March 2011

Delivered at:

Sydney

Delivered on:

31 March 2011

REPRESENTATION

For the Applicant:

In person

Solicitors for the First Respondent:

DLA Phillips Fox

ORDERS

(1) Application dismissed.
(2) Applicant to pay the First Respondent’s costs assessed in the sum of $3,800.00.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY

SYG 2729 of 2010

SZOWE

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

REFUGEE REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. The applicant is a citizen of China. He arrived in Australia on 9 September 2007 as the holder of a child guardian visa and on 11 May 2010 he applied to the Department of Immigration & Citizenship for a protection (Class XA) visa. On 22 July 2010 a delegate of the Minister refused to grant a protection visa and on 27 August 2010 the applicant applied for review of that decision from the Refugee Review Tribunal. The Tribunal interviewed the applicant at a hearing and on 16 November determined to affirm the decision under review. It handed that decision down on 17 November 2010.
2. The facts upon which the applicant claimed that he had grounds for invoking the protection obligations of Australia under the Refugee’s Convention were that he was a Christian living in the Fujian Province, who had been arrested in October 2000 and detained for two days because they found some vital materials in his home where he claimed that local church activities took place. The applicant agreed with the Tribunal that he had never again been detained because of his religious beliefs and that he had been able to attend the local church from 2000 to 2007 without any further episodes of detention or arrest. The applicant also told the Tribunal he had been a fresh water fisherman utilising the waters of a local river and to run, what I understand, was a breeding farm and that in 2005 the local industry began to pollute the river and he raised complaints against the factory controllers who were two powerful local political figures. The applicant claimed that in January 2005 he was taken by the police and accused of having brought false charges against the controllers of the factory and was detained for five days. He indicated that the police were aware that he was the innocent victim of political corruption but there was nothing that could be done.
3. That fishing business was ruined. The applicant told that in the meantime his wife was an executive at a metal refinery factory earning a substantial living until sometime after 2007 when she went into the aquaculture business. The applicant told that in 2009 his wife’s fish farm was compulsively acquired for the construction of a highway and that his wife was compensated although he did not believe that she was sufficiently compensated. Finally, in early 2010, the applicant and his wife’s house was similarly acquired for the same highway and that while some compensation had been offered it had not yet arrived and the applicant considered it to be inadequate.
4. The Tribunal questioned the applicant about his claims and accepted that he had been detained for two days in 2000 for practising at the local church and that he had been required to pay a fine and sign a guarantee not to practise again. It found that he continued to attend the local church and a local registered church from 2000 until he left China in 2007 and had not been detained or arrested again. The Tribunal found that the applicant had been detained for five days in 2005 because of his actions complaining about the local dignitaries over the pollution of the river. It found that his wife’s fish farm had been compulsively acquired in late 2009 for the construction of a highway and that she had received compensation and that his house had similarly been acquired and that whilst compensation had been offered it had not yet been paid. Although the Tribunal accepted much of the applicant’s evidence concerning his religious practice it did not accept that the authorities would not allow him to go to church on Sundays or that they could not hold family church meeting at homes.
5. It did not accept that there was serious control by the authorities of religious practice and that his human rights and freedoms in respect of religious practice had been violated or that he had suffered religious persecution. The Tribunal came to these conclusions based upon its questioning of the applicant and independent country information concerning the situation of Christians in Fujian. The applicant told the Tribunal that he had attended church in Australia but not regularly.
   • “[133] He did not claim that he had done anything here involving the church which would bring him to the attention to authorities should he return to China. ... He has not provided any documentary evidence from the church itself which might indicate that he attends the Local Church here.
   • [134] On the evidence before it, the Tribunal is not prepared to accept that the applicant has attended the Local Church here in Australia. The Tribunal considers that it would not have been difficult for the applicant to obtain supporting documentary evidence from the church elders that he attended here if his claims were true.”
6. The Tribunal opined that because it was satisfied that the applicant may have gone to church here because of his genuine Christian beliefs, it was not prepared to exclude his conduct pursuant to s.91R(3) of the Migration Act (1958) (the “Act”). It came to the conclusion, however, that because of the low level of the applicant’s church activity in Australia and the high level of tolerance found in Fujian province, he was unlikely to meet serious harm should he return to his home on that account.
7. At this stage it should be noted that the applicant attempted to tender to this court evidence about his church activities in Australia presumably to counter the Tribunal’s findings extracted above. This is a matter which should have been brought to the attention of the Tribunal as this court is not an appellate court, and there is no jurisdictional error in the manner in which the Tribunal came to its views about the applicant’s church attendance based upon the evidence that was currently before it.
8. The Tribunal dismissed any suggestion that the actions of the government in resuming the applicant’s wife’s fish farm and their house were motivated by any convention reason:
   • “[159] The Tribunal considers that the fact that the applicant’s home and fish farm were demolished, and that they suffered economic harm as a result, does not necessarily mean that this is either serious harm under the Convention or that it is for a reason under any of the Convention grounds.”
9. As to the convention grounds, as stated earlier, the persecution requires an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors. The applicant does not claim that his house and fish farm were demolished because of his race, religion, nationality, membership of a particular social group or political opinion. It is clear that they were demolished because of the construction of a new highway. When the Tribunal questioned him further over a suggestion that the demolitions were related to his past religious practices in his home he ultimately dismissed this possibility [159 – 160] [CB 163].
10. The Tribunal also concluded that the resumption of the home and fish farm could not be considered as inflicting serious harm upon the applicant as defined in ss.91R(2)(d) and (f) because some compensation had been paid which led the Tribunal to find that his capacity to subsist, was not threatened. The Tribunal further found that if the applicant returned to China and continued to complain or petition in relation to the issue of compensation it was not satisfied that it would lead to a real chance that he would suffer serious harm because it noted in his absence that his wife and other family members have continued their battle for additional compensation and have not been harmed. It noted that the construction of a highway and the resumption of properties would affect many people and that it had no evidence before it that anyone had been adversely affected by that construction:
    • “[172] Further, the applicant did not make any detailed claims in his evidence about what he will do and what will happen to him if he does complain or petition about either matter, and who will do this to him and why. The applicant did not give the Tribunal any satisfactory reason as to why, in his particular case, he would be persecuted by the authorities if he chose to exercise this right to petition or complain further in this matter, on the basis of political opinion.”
11. On 17 December 2010 the applicant filed an application for review of the decision of the Refugee Review Tribunal in this court. There were three grounds of application. The first was:
    • “The Tribunal decision was affected by jurisdictional error, and find illogical reasons.”

In Minister for Immigration and Citizenship v SZMDS [2010] HCA 16 the High Court found that illogicality or irrationality might constitute jurisdictional error if no rational or logical decision maker would have reached the same decision on the same evidence. The applicant has not indicated how, in the very thorough reasoning of the Tribunal in this particular case, this very difficult test could be passed. Perhaps all that has happened is that which was described by the High Court in the Minister for Immigration v Eshetu [1999] HCA 21, “a description of reasoning as being illogical or unreasonable may be merely an emphatic way of disagreeing with the reasoning.” I have no doubt that the applicant violently disagrees with the views expressed by the Tribunal but I am equally certain that this ground cannot be made out.

12. The second ground was that:
    • “The Tribunal failed to give me sufficient time to provide further information.”

There was nothing that I saw in the decision record which indicated that the applicant had asked the Tribunal for further time to provide information and that he had been treated unreasonably in regard to that request. Possibly, the applicant wished that he had asked the Tribunal for the time to provide the evidence from the local church that he now has. But in all the circumstances I cannot see that this ground has been made out.

13. The final ground is that:
    • “The Tribunal did not give sufficient consideration of my case, and rejected my application.”

As Ms Stone indicates in her helpful written submissions, this is no more than taking issue with the factual conclusions of the Tribunal and is an attempt to seek merits review from this court which it cannot provide.

14. When the applicant appeared before me today he repeated that he could not understand how his claim had been declined given that his house and his wife’s fish farm had been taken away. He told me that the effect of these insults was that he was no longer able to support his child in the educational establishment to which he had been sent in Australia (although it appears that he can now do so by virtue of a work permit having been granted to him). The financial effect of the resumption of the home and fish farm was considered by the Tribunal which came to a conclusion that was open to it on the evidence and no jurisdictional error is shown in that regard. The applicant asked that I should not just focus on what is right or wrong under the Act and the law but that I should think of the matter from a different angle. Regrettably, so far as the applicant is concerned, it is the duty of this court only to focus on what is right or wrong under the Act and law. That is the essence of the rule of law. It is there to prevent arbitrary decision making whether that be favourable to an applicant or not.
15. Having considered the decision record of the Tribunal as a whole I am satisfied that it does not evidence any jurisdictional error on the part of the Tribunal and thus the application must be dismissed. I order that the Applicant pay the First Respondent’s costs assessed in the sum of $3,800.00.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of Raphael FM

Date: 21 April 2011